Options of a defendant who chooses to defend a debt recovery claim

Defend the claim

If the defendant decides to defend the claim, he must complete the 'Defence and Counterclaim (specified amount)' form and return it to the court. This must be done within 14 days of the effective service date or 28 days if Acknowledgment of Service has been filed. If the defendant is an individual not in business and the claim was issued in a county court that is not his local court, it will be transferred to his local county court as soon as a defence has been entered. If the defendant entering a defence does not come into this category, it will not be transferred. An important question on the form is 'Do you dispute the claim because you have already paid it?' If the answer to this is yes, the defendant is asked to state where and how the money was paid. This, if true, is the most conclusive of all the possible defences.

All other defences must be outlined in part 3 of the form. The defendant can if he wishes put full details of the defence, but this is not needed. What is required is an outline of the defence on which the defendant intends to rely. For example, a key phrase might be 'delivery of the goods never took place'. This would leave the defendant to provide supporting details and evidence later. The detailed defence used later should be within the limits of the outline defence stated on the form. The defendant would, for example, have a problem if he later admits that delivery did take place and that the real defence is that the goods were faulty. Such a change may only be made with the permission of the court and such permission might not be given. Instead the defence might be struck out, which means that the claimant has won. If permission is given, it may result in the defendant being penalised on costs.

The form contains a statement of truth which must be signed by the defendant or someone acting on his behalf. This is exactly the same as the statement of truth on the claim form and the defendant should have a sincere belief in the truth of everything asserted on the form. He may be personally penalised if this is later shown not to be the case.

Defend part of the claim, admit part of the claim and pay the admitted part

The defendant must complete the 'Defence and Counterclaim (specified amount)' form and send it to the court within the permitted period. The form must identify the amount of the claim that is admitted and the amount that is disputed. The previous part of this article sets out some guidance for the defence form and this is equally applicable when only part of the claim is defended. The defendant should pay the undisputed part of the claim directly to the claimant and this should be done before the form is sent to the court. The claimant may decide to accept the part payment but if he does not, the case will proceed in respect of the disputed part.

Defend part of the claim, admit part of the claim and ask for time to pay the admitted part

The defendant must complete the 'Defence and Counterclaim (specified amount)' form and send it to the court within the permitted period. The form must identify the amount of the claim that is admitted and the amount that is disputed. The admission form must also be completed and sent to the court. Both forms were explained in detail earlier in this article. The claimant may decide to accept the part admission, but if he does not, the case will proceed in respect of the disputed part.

File a counterclaim in conjunction with all but the first two of the above

This is, potentially at least, the worst response for the claimant. The counterclaim may arise out of the same contract or contracts that are the subject of the claim, or it may relate to a completely different matter. Once a counterclaim has been made the claimant loses the option of just abandoning the claim and walking away. Claim and counterclaim go forward together, so effectively there are two claimants and two defendants. There is a part of the 'Defence and Counterclaim (specified amount)' form that relates to a possible counterclaim and this must be completed by the defendant. A fee is payable by the defendant when the form is filed with the court.

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